The Bombay High Court, in its order dated January 17, had refused to examine the correctness of the order of the trial court that rejected her bail application.
A special leave petition, filed by women’s rights activist and academic Shoma Sen challenging the order of the Bombay High Court on her bail plea, is listed to be heard on May 4. The petition was mentioned by senior advocate Anand Grover before a division Bench of the Supreme Court, led by Chief Justice of India Dr D.Y. Chandrachud, on Wednesday.
On January 17, the high court refused to examine the order of the additional sessions judge, Pune that rejected Sen’s bail application, and asked her to approach a special court under the National Investigation Agency (NIA) Act for bail instead.
Sen, an accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case, has been charged under the Unlawful Activities (Prevention) Act (UAPA). Sen has been in custody since June 6, 2018, and stands accused with 15 others. She is lodged at the Byculla jail in Mumbai.
In its order, the high court noted that on January 24, 2020, the investigation of the crimes for which Sen was charged was transferred to the NIA. Thereafter, the NIA filed a supplementary chargesheet in view of changes in circumstances. The high court emphasised that such a transfer of investigation was undertaken after the order of the trial court dated November 6, 2019, which rejected Sen’s bail application.
The high court further opined that since Sen failed to move the trial court for accessing all material and evidence against her, the high court did not have the benefit of the entire evidence assessed by the trial court. It, thus, directed Sen to approach the trial court to seek bail afresh.
Sen’s petition before the Supreme Court highlights a substantial question of law for determination: whether the high court was correct in its refusal to examine the trial court’s order on the ground that during the pendency of Sen’s application before the high court, the investigation was transferred to the NIA.
The petition submits that the order of the additional sessions judge, Pune is tantamount to an order of a special NIA court and therefore, is open for appeal. It emphasises that no fresh allegations are made against Sen in the supplementary chargesheet filed by the NIA on October 9, 2020, during the pendency of bail application before the high court. Further, the petition points out that by its order dated July 7, 2021, due to the investigation being taken over by the NIA, the high court directed the inclusion of the NIA as a respondent. Thus, this inclusion would not have caused prejudice to the NIA if the high court had proceeded to hear the matter on merits, it claims.
Underlining the cases of her co-accused, trade unionist, activist and academic Vernon Gonsalves, and activist and lawyer Arun Ferreira, the petition states that the Supreme Court impleaded the NIA as a party on the ground that when the judgment or order of the Bombay High Court concerning Gonsalves and Ferreira was passed, the investigation was not being undertaken by the NIA.
In view of the NIA’s stand that the investigation is still ongoing, the petition raised the concern that such an approach of the high court, in its order that is challenged by Sen, will be damaging to individual liberty. It cautioned that supplementary chargesheets will become a means to deny an appeal against the order of the trial court.
Referring to the Supreme Court’s judgment in Union of India versus K.A. Najeeb (2021), the petition states that Sen has been incarcerated for almost five years now and is entitled to bail. The order of the high court is detrimental to Sen’s personal liberty, it added.
The petition submitted that there is no material against Sen to believe the accusation against her is prima facie true. It also claims that Sen’s case is similar to that of co-accused, scholar, writer and activist Dr Anand Teltumbde, who was granted bail on merits by the Bombay High Court on November 18, 2022, and whose bail was upheld by the Supreme Court on November 25, 2022.
According to the petition, Sen, now 65 years old, has several health issues, and suffers from multiple co-morbidities, including arthritic rheumatism, blood pressure and glaucoma.
In June 2018, Sen was arrested by the Pune Police under the provisions of the Indian Penal Code and UAPA.
On December 13, 2018, Sen moved the additional sessions judge, Pune, for bail. The trial court rejected the bail application on November 6, 2019. Thereafter, the NIA took over the investigation of the case on January 24, 2020, and filed a supplementary chargesheet on October 9, 2020.
Sen filed an appeal at the Bombay High Court against the rejection of bail by the additional sessions judge, Pune on January 9, 2020.
In April 2021, Sen petitioned the Bombay High Court challenging the UAPA charges levied against her by NIA. Sen submitted that the case against her was entirely based on evidence retrieved from co-accused, activist and researcher Rona Wilson’s electronic devices that were infiltrated with malware, as confirmed by forensic reports by a private digital forensics consultant.
In September 2021, Sen sought interim bail on medical grounds. Sen submitted that she suffered from several ailments, including hypertension and blood pressure, making her more susceptible to COVID. However, an NIA court rejected her bail plea.
In May last year, the Bombay High Court dismissed a petition filed by Sen and seven of her co-accused in the case, who sought review of an earlier order of the high court which dismissed their appeal for default bail.
In June last year, an NIA court also rejected the default bail application filed by Sen and four of her co-accused.
Sen has been lodged in Byculla’s women’s prison in Mumbai and is awaiting trial.
It must be noted that trial is yet to begin in the Bhima Koregoan case. The prosecution has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses. Several of the accused persons have now spent almost five years in judicial custody without trial.
Apart from Dr Teltumbde, two of the other co-accused, trade unionist, activist and lawyer Sudha Bharadwaj, and activist, poet, writer and teacher Dr P. Varavara Rao, have managed to secure bail so far. Another co-accused, tribal rights activist and Jesuit priest Father Stan Swamy, passed away due to COVID in custody in June 2021 after incarceration for over seven months.
An independent investigation by Arsenal Consulting, a leading, independent expert firm on digital forensics, has revealed that sophisticated malware was used to plant the digital evidence that forms the basis for the prosecution’s case on the devices of two of the accused persons in the case. Arsenal’s findings were published in four reports last year.